On November 6, 2016, California voters passed Proposition 64 and joined
five other states in legalizing the recreational use of marijuana. However,
what many Californians fail to realize is that just because it is legal
to smoke marijuana, does not mean it cannot be restricted. In fact, there
seems to be a misconception, especially by California employers, that
the law authorizes marijuana use anytime and anywhere, thereby making
workplace drug policies unenforceable. However, employers can breathe
a sigh of relief because this is simply not the case.
It is undeniable that passage of Proposition 64 signaled a big change in
the cultural and social attitudes of Californians on the use of marijuana.
This is inline with a recent analysis conducted by Quest Diagnostics,
a clinical testing company that provides drug testing, which found an
overall rise in positive drug tests for marijuana throughout the country.
Drug tests in Colorado and Washington, the first two states to legalize
marijuana, actually outpaced the national average by almost twofold. It
is likely that California will follow in the footsteps of Colorado and
Washington and see a sharp rise in marijuana use throughout the state,
but what is an employer to do?
What many California consumers seem to overlook is that fact that law itself
is almost sixty (60) pages and sets forth various restrictions on where
and when marijuana may be used. As it relates to workplaces, the initiative
specifically carves out that public and private employers are permitted
to maintain a drug and alcohol free workplace. As such, employers are
not required to permit employees to use, consume, possess, transfer, display,
transport, sell, or grow marijuana in the workplace. Additionally, the
law has no effect on the ability of an employer to have a policy prohibiting
the use of marijuana by employees and prospective employees. (Section
11362.45(f).) This means that should an employer have a pre-employment
drug testing policy, it is still permissible to deny employment based
on positive drug result for marijuana. In fact, in a 2008 case called
Ross v. RagingWire, the California Supreme Court found that an employer could even deny employment
to someone who tested positive for marijuana even though the prospective
employee had a medical necessity for it.
To be very clear, Proposition 64 was not a blank check for Californians
to smoke marijuana whenever and wherever. As an employer, it may be easier
to reconcile the legalization of the drug and its permitted/unpermitted
use by employees by viewing it in a similar fashion to alcohol. Undoubtedly,
there are very few jobs where an employer would permit an employee to
come to work intoxicated, or to consume alcohol during work hours. In
the same manner, employers in California may in fact restrict the consumption
and use of marijuana by their employees. However, it is critical, if they
are going to do so, that employers have a clear and explicit drug-free
workplace policy which identifies marijuana as a prohibited substance
and that impairment on the job will not be tolerated.